Federal Court of Appeal Decisions

Date: 20020409

Docket: A-420-01

Neutral citation: 2002 FCA 140

CORAM:        STONE J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                                    TAYSIR BADRA

                                                                                                                                                       Applicant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                  Heard at Toronto, Ontario, April 9, 2002

                                      Judgment delivered at Toronto, Ontario, April xx, 2002

REASONS FOR JUDGMENT BY:                                                                               SHARLOW J.A.

CONCURRED IN BY:                                                                                                             STONE J.A.

                                                                                                                                              MALONE J.A.

Date: 20020409

Docket: A-420-01

Neutral citation: 2002 FCA 140

CORAM:        STONE J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                                    TAYSIR BADRA

                                                                                                                                                       Applicant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

SHARLOW J.A.

[1]                 This case began in 1997 when the applicant Mr. Badra applied for benefits under the Employment Insurance Act, S.C. 1996, c. 23, and received them. At some point the Employment Insurance Commission received information that led them to believe that Mr. Badra had received benefits of $2,548 in excess of his entitlement. The Commission advised Mr. Badra by letter dated September 23, 1998 that he would be required to refund the overpayment.

[2]                 In a second letter of the same date, Mr. Badra was advised that the Commission was of the opinion that he had knowingly made false or misleading statements, presumably on his reporting cards, for which he would be assessed a penalty of $2,548 under section 38 of the Employment Insurance Act. In a third letter of the same date, the Commission advised Mr. Badra that because of the penalty, the number of insurable hours needed to qualify for benefits in the future would be substantially increased.

[3]                 Mr. Badra appealed to the Board of Referees in respect of all three decisions. On November 6, 1998, the Board of Referees dismissed his appeal. The record indicates that the Commission had not presented as evidence the reporting cards containing the statements of Mr. Badra that the Commission alleged were knowingly false or misleading.

[4]                 Mr. Badra then appealed to the Umpire. His appeal was allowed on December 20, 1999 (CUB 46962) on the basis that the decision of the Board of Referees did not meet the requirements of section 114(3) of the Employment Insurance Act, which reads as follows:

[5]                 The Umpire set aside the decision of the Board of Referees and returned the matter to a differently constituted Board of Referees for rehearing and redetermination and compliance with section 114(3) of the Employment Insurance Act.

[6]                 The rehearing before the Board of Referees occurred on June 1, 2000 and resulted in a decision dated June 2, 2000 dismissing Mr. Badra's appeal. Again, the Commission did not adduce the reporting cards as evidence. Mr. Badra again appealed. The appeal was heard by another Umpire on November 28, 2000 and dismissed on December 18, 2000 (CUB 50303). The reasons for decision read as follows:

The Appellant appeals the decision of the Board of Referees which dismissed his appeal from the ruling of the Commission that he had failed to declare earnings from his employment during the period of November 28, 1997 to January 9, 1998. As a result, he was disqualified from the receipt of benefits and was assessed a penalty.

The issues on the appeal are, as stated by the Board of Referees, as follows:

" 1.Whether the earnings are to be deducted from benefits paid during the period of employment pursuant to Section 19(3)(a)(i) of the Employment Insurance Act and Section 15 of its regulations.

2. Whether the claimant knowingly made false or misleading statements pursuant to Section 38 of the Employment Insurance Act.

3. Whether a Notice of Violation for having provided false information should be issued pursuant to Section 7.1 of the Employment Insurance Act."

An initial claim for benefits was established effective June 1, 1997, arising as a result of a layoff from the Appellant's employment as a driver/courier for Informationcomm Services ICS. It was subsequently discovered by the Commission that the Appellant had worked for ICS during the period November 27, 1997 to January 9, 1998, for which he had received pay, and determined that the sum of $1, 681.20 received by the Appellant during that period was allocated because of the overpayment of benefits. He is also assessed a penalty.

The Appellant did not deny having working [sic] as described, but did not view it as a job because it was an unexpected temporary assignment by his former employer which arose because the regular driver had been injured while working and that the job would be ".. terminating upon the return of the regular driver from his injury" (Exhibit 5.2).

The Report on Employment filed by the employer confirmed the employment, which was terminated on January 9, 1998 ".. for being involved in an avoidable accident with company vehicle during probationary period" (Exhibit 4.2).

The Board of Referees had no difficulty on this evidence in dismissing the appeal on all three issues. As the Board observed, the Appellant offered no explanation for his failure to disclose the earnings he acknowledged having received, other than to say that the record now before me did not contain his report cards which he said would have shown that he did not intentionally provide false information and wanted them produced to rebut the Commission's evidence.

It is true that the cards were not produced before the Board of Referees, nor before a previous Umpire who had ordered a rehearing because of the failure of the first Board to meet the requirement of subsection 114(3) of the Employment Insurance Act. In his decision, Umpire Murdoch made no mention of the failure to place in evidence the report cards, although the Appellant alleged that the Umpire had based his decision to require a new hearing on that omission. The minutes recorded by the Registrar in that appeal to the Umpire verifies that counsel had pointed that fact out but, as observed, the Umpire returned the matter for a re-hearing because of the Board's failure to make findings of fact material to the decision making no mention of the missing report cards.

There is no merit in the appeal. The Appellant admits he worked and, even though it was temporary employment, he was paid therefor, a fact which he failed to disclose. While the report cards are not in evidence, the admissions and Exhibits 4.1, 4.2, 5.1 and 5.2 all provide ample evidence to support the Board's decision on all of the three issues before them. Accordingly, the Appeal is dismissed.

[7]                 Mr. Badra then applied to the Umpire for reconsideration of his decision under section 120 of the Employment Insurance Act, which reads as follows:

[8]                 On May 16, 2001, the Umpire dismissed the application for reconsideration (CUB 50303A) for the following reasons:

The Applicant in this application for reconsideration of my Decision dated December 18, 2000, has failed to satisfy me that any of the principles enunciated in the A.G. Canada v. Chan case have been satisfied, which they must be if reconsideration of an Umpire's decision is to succeed.

Accordingly, the application is dismissed.

[9]                 Mr. Badra now seeks judicial review of the decision refusing his application for reconsideration.

[10]            The case of Canada (Attorney General) v. Chan, reported at (1994), 178 N.R. 372, [1994] F.C.J. No. 1916 (C.A.), states the principles to be applied in determining whether, for the purposes of section 120 of the Employment Insurance Act, an application for reconsideration has been justified by the presentation of "new facts".

[11]            However, the basis of Mr. Badra's application for reconsideration was not the presentation of new facts. On the contrary, Mr. Badra was arguing that reconsideration is warranted because the first decision "was given without knowledge of, or was based on a mistake as to, some material fact." That argument was not addressed by the Umpire in the reasons he gave for rejecting Mr. Badra's application for reconsideration. For that reason, I must conclude that the decision under review is not supported by the reasons given. It does not follow, however, that the decision must be set aside. Rather, it is necessary to consider whether the decision is supported by the record.

[12]            Mr. Badra's main argument is that the Umpire, in his initial decision (CUB 50303), did not appreciate that the evidence before the Board of Referees was not capable of proving that Mr. Badra had made false statements on his reporting cards. Mr. Badra attributes this error to the failure of the Commission to present the reporting cards as evidence. Without the reporting cards, there is no evidence as to what questions Mr. Badra was asked or what statements he made. Mr. Badra argues that the reporting cards, if submitted, would have proved that there was no factual basis for the imposition of the penalty.

[13]            Normally, when the Commission imposes a penalty on a person for knowingly making false or misleading statements on a reporting card, and the person appeals the penalty, the Commission presents the reporting cards as evidence. Rothstein J.A. explained the normal practice in Caverly v. Canada (Minister of Human Resources Development), 2002 FCA 92, [2002] F.C.J. No. 312, at paragraphs 7 and 8:

[7]      The Commission has the onus of proving the allegation that a claimant knowingly made a false or misleading statement on a balance of probabilities. See [McDonald v. Canada (Employment and Immigration Commission) (1991), 81 D.L.R. (4th) 736 (F.C.A)] at page 742. In our opinion, in order to discharge that onus, the Commission must adduce evidence of both the actual questions asked, as well as the answers given.

[8]     [...] Certainly, in cases involving reporting cards, the reporting cards themselves are typically put in evidence before the Board of Referees and the questions and answers are both in evidence.

[14]            In another recent case, Canada (Attorney General) v. Miller, 2002 FCA 24, [2002] F.C.J. No. 60, this Court indicated its disapproval of the practice of attempting to prove false statements in a penalty appeal by indirect evidence. The following appears at paragraph 20 of that decision:

I would also note that, before neither the Board nor the Umpire, had the Commission been able to produce in evidence the reporting cards completed by Mr. Miller that contained the statements on which it relied to justify the penalty that it had imposed. Given the seriousness of the imposition of a penalty for lying, the Commission ought not normally to resort to the notes of an interview between a Commission official and the claimant as proof of a false statement made by the claimant in a document that the claimant had given to the Commission.

[15]            The fundamental question, it seems to me, is whether the record that was before the Umpire in Mr. Badra's reconsideration application supported his argument that the decision of the Board of Referees at the new hearing, and thus the decision of the Umpire in CUB 50303, was based on a mistake as to some material fact. In this context, the answer would have to be yes unless the record included evidence that was capable of proving that Mr. Badra knowingly made false and misleading statements.

[16]            The evidence cited in the second Board of Referees decision, and by the Umpire in CUB 50303, are unspecified "admissions" of Mr. Badra and the documents marked as Exhibits 4-1, 4-2, 5-1, and 5-2. The record does not disclose what admissions Mr. Badra supposedly made. Before this Court, he denied making any admissions. Exhibits 4-1 and 4-2 are two pages of a document setting out a request the Commission made to Informationcomm Services ICS about Mr. Badra's employment with the company, and the response to that request. Exhibits 5-1 and 5-2 are two pages of a document containing a similar request for information addressed to Mr. Badra, with his response. These exhibits comprise some evidence that Mr. Badra worked for Informationcomm Services ICS during a specified period. However, they are not capable of proving what questions Mr. Badra was asked on his reporting cards, or what answers he gave.

[17]            As a result, I must conclude that the record before the Umpire in Mr. Badra's application for reconsideration establishes that the Umpire's prior decision (CUB 50303) was based on a mistake as to a material fact. Therefore, his application for reconsideration should have been allowed.

[18]            It follows that this application for judicial review should be allowed. The decision of the Umpire in CUB 50303A should be set aside and this matter should be referred back to the Umpire for reconsideration on the basis that he:

(a)        allow Mr. Badra's application for reconsideration of CUB 50303, and

(b)        refer his appeal back for a new hearing before a differently constituted Board of Referees with a direction to consider the relevance of the reporting cards or, if the reporting cards are not adduced by the Commission as evidence in the new hearing, to consider specifically whether, without the reporting cards, the Commissioner can establish what questions were asked of Mr. Badra and what answers he gave that are alleged to be false or misleading.

J.A.